PS v CGJ [2015] NZHC 2983 (27 November 2015)

Last Updated: 29 December 2018

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE HTTP://WWW.JUSTICE.GOVT.NZ/COURTS/FAMILY- COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-4446 [2015] NZHC 2983

BETWEEN	PS Appellant
AND	CGJ Respondent

Hearing:	20 November 2015
Appearances:	A Hart for the appellant J Connell for respondent J McCormick, lawyer for the child
Judgment:	27 November 2015

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 27 November 2015 at 1:00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

PS v CGJ [2015] NZHC 2983 [27 November 2015]

Introduction

[1] This appeal was set down for a hearing on 24 November 2015. Following a telephone conference with counsel on 20 November 2015, and the subsequent filing of memoranda, the parties agree that the appeal should be disposed of by an order remitting the matter to the Family Court for re-hearing. The Court is required to decide the terms of the appropriate orders.

Background

[2] The appellant, PS, is the mother and the respondent, CGJ, is the father of a male child, R, born on 18 November 2008. Under s 143 of the Care of Children Act 2004 (“the CCA”), PS appeals a judgment of the Family Court at Auckland given on 13 September 2013.

[3] Because the agreed disposition of this appeal will require the Family Court to make new findings of fact and law, it is neither necessary nor desirable for me to traverse the facts in detail or to discuss the merits of the judgment from which the appeal is brought. It is necessary to give a brief family history only, to explain the reasons for the orders made at the end of this judgment.

[4] PS was born in Malaysia. She is a qualified engineer who visited New Zealand on an exchange programme and subsequently came to work in this country in 2002. PS and CGJ met in December 2005 and formed a relationship some months later. There was a short period of separation but PS and CGJ reunited at the end of 2007; PS became pregnant, and the parties married.

[5] The parties separated in February 2010 when R was approximately 14 months old. After the separation, PS and R returned to Malaysia on a three-month visit to her family, returning to New Zealand in November 2010.

[6] In April 2011, CGJ applied for a non-removal order and for parenting orders relating to contact with R. In May 2011, a consent memorandum was signed. In October 2011, CGJ applied to vary the care arrangements and a further agreement was confirmed in an order.
[7] In April 2012, PS applied for orders discharging the non-removal order and permitting her to relocate with R to live in Malaysia.

[8] In a judgment dated 11 September 2013, Judge JH Walker dismissed the applications for relocation and discharge of the non-removal order. The Judge discharged all existing parenting orders and made new parenting orders addressing in detail the care and contact arrangements which were to apply thereafter.

The appeal proceeding

[9] The notice of appeal by PS was filed on 11 October 2013, with particularised points being provided on 12 November 2013. A reply to the points on appeal was filed on behalf of CGJ on 18 November 2013.

[10] For a variety of reasons which are not relevant, but which included attempts by the parties to settle their differences over the matters in issue, the appeal was not set down for a hearing until 24 November 2015. The considerable delay is unusual and regrettable and the parties had been encouraged by judges of this Court to either resolve the issues promptly by agreement or argue the appeal.

[11] Among the issues to be resolved at the hearing were questions concerning the provision of updating evidence, possibly including a new report from a psychologist under s 133 of the CCA. The appeal was set down for a one-day hearing.

[12] Following the receipt of helpful pre-hearing memoranda from counsel, the Registrar arranged a telephone conference at short notice to discuss the conduct of the appeal hearing. A question had arisen about the representation for the appellant. That clearly affected the issue of whether the hearing of the appeal could take place as scheduled. In addition, there was a proposal that there should be cross-examination which affected the likely duration of the hearing, and a suggestion that the judge hearing the appeal should interview the child added a further dimension.

[13] Further, matters raised by counsel for the appellant concerning the desirability of updating affidavits and the relevance of post-judgment conduct touched on the
question whether the appeal should proceed at all, or whether the matter would more appropriately be reheard by the Family Court.

[14] Responsibly, all counsel agreed that it would be unsatisfactory for the Court to be placed in the position of hearing an appeal against a judgment delivered two years ago, at which time the circumstances were materially different from those which now apply. Not the least of the relevant changed circumstances is that R was only four years old at the time of the Family Court hearing but is now more capable of expressing his views on matters at issue.

Matters to be addressed in the disposition of the appeal

[15] I have heard the views of counsel about the appropriate orders for returning this matter to the Family Court for rehearing. They are agreed on the general outcome but not entirely on the nature of the orders. I respectfully adopt the approach of Stevens J in a similar case, REC v PDC,¹ a case in which the Judge concluded that an order under s 76 of the District Courts Act 1947 directing the Family Court to rehear an application for a parenting order could be made without deciding the merits of the appeal. All counsel accept that it is appropriate to dispose of the present appeal in that manner.

[16] Rule 416P of the Family Courts Rules 2002 requires that all proceedings under the CCA must be dealt with on “tracks” to assist the proceedings to progress through to resolution in an orderly and efficient manner. A judge may classify as a complex case any proceedings that are being dealt with on the standard track, but only if the judge is satisfied that the proceedings require a greater degree of judicial oversight than is ordinarily provided in proceedings under the Act.² Although this case does not appear to fall within the category of a case in which the features expressly described in r 416T(2) appear, one of the advantages of such a classification is that the proceeding becomes one in respect of which case management conferences may be convened for the purpose of allowing closer judicial management of the case. Given the length of time during which this case has been in the court system; its history; and

¹ REC v PDC HC Auckland CIV-2006-404-3083, 31 August 2006.

² Family Courts Rules 2002, r 416T(1).

the inordinate delay in achieving a satisfactory final resolution of the issues, I agree with counsel that it is appropriate in the circumstances for this Court to direct the Family Court to classify the proceedings under r 416T and to give directions for the convening of a case management conference. I do so somewhat reluctantly, because it may be thought that this Court is interfering with the proper administration of the proceedings by the Family Court. I am satisfied, however, that giving such directions with the consent of all parties will enable the Family Court to move the proceedings forward expeditiously without further undue delay.

[17] All counsel agreed that it would be appropriate for there to be an order under s 133 of the CCA to request an updated psychologist’s report. Counsel were not agreed, however, on the scope of the psychologist’s brief and who should prepare the report. Although I was invited to make a determination as to who should be appointed, and to determine the brief for the report, I am not well placed nor sufficiently informed to do so. That matter is one which is far more appropriately determined by the Family Court Judge to whom the case is assigned and who will convene the first case management conference. Counsel will have the opportunity to file memoranda prior to the case management conference addressing all of the issues which were covered in the most recent memoranda filed in this Court, and any other relevant issues.

Orders

[18] I make the following orders and directions:

(a) Under s 76(1)(b) of the District Courts Act 1947, these proceedings shall be remitted to the Family Court at Auckland for the rehearing of the appellant’s applications as soon as may be convenient to that Court. Judge JH Walker having retired since the 2013 judgment was delivered, the matter will necessarily be heard by a different judge.

(b) Under s 76(1)(c) of the District Courts Act 1947, the Family Court shall classify the proceedings, under rr 416S and 416T of the Family Courts Rules, as complex proceedings on a standard track.
(c) The Registrar of the Family Court at Auckland shall place the file and a copy of this judgment before a Family Court Judge as soon as is reasonably possible, with a view to the giving of directions for the holding of a case management conference to determine the next steps.

(d) The parties have the leave of this Court to place before the Family Court, and to rely upon, any affidavits which have been sworn or affirmed and filed in this Court for the purpose of the appeal.

(e) The parenting orders made by Judge Walker on 13 September 2013 shall remain in effect pending further order of the Family Court.

[19] There will be no order as to costs.

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Toogood J